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Historic Housing for All: Historic Preservation as the New Inclusionary Zoning

Elizabeth M. Tisher

When Americans celebrated the 100th anniversary of Jane Jacobs’s birth this year, they reflected on her tireless advocacy for vibrant, diverse cities in the face of widespread urban renewal.[1] Jacobs championed an animated streetscape of unique buildings, old and new; an eclectic array of merchants; and colorful, if chaotic, sidewalk activity—essentially “an oasis with an irresistible sense of intimacy, cheerfulness, and spontaneity.”[2] Although urban renewal cut a path of destruction through the heart of many cities during the mid-twentieth century, Jacobs’s ideas lived on to shape the historic preservation movement and many other progressive policies that have influenced modern planning.[3]

But Jacobs’s fight is far from over. Ironically, the renewed interest in urban living—and urban pioneering—that was sparked by her theories has reignited the same tensions that divided Jacobs and her contemporaries back in the 1950s: preservation versus demolition, old versus new, rich versus poor.[4] At the core of these tensions is an affordable housing crisis. Consequently, the strides Jacobs made and the polices she advanced—particularly historic preservation—are being criticized by housing advocates as obstructing affordable housing development.[5]

Thus, on Jacobs’s 100th birthday, the question on the minds of many was: on which side of the affordable housing debate would Jacobs fall?[6] Would she side with affordable housing development or the preservation of historic districts?[7] It is impossible to answer this question, and not just because Jacobs is no longer around to opine on the issue, but because it is the wrong question. We should be asking: how can historic preservation be used to further affordable housing goals?

The main argument from housing advocates is twofold: that the only way to create enough affordable housing to meet the demand is to build as much housing as possible, and that historic districts prevent development, thereby obstructing affordable housing growth.[8] This Article proposes that historic preservation is not the problem and that preservation is a necessary tool for creating and maintaining quality, affordable housing.

Part I of this Article provides a background on the tension between historic preservation and affordable housing, and lays out the argument against historic preservation. Part II examines the flawed assumptions on which the argument is premised, and explains why preservation is not the problem. Part III illustrates how historic preservation can, in fact, further affordable housing goals. Finally, Part IV explores ways in which historic preservation laws and policies can be strengthened to create more higher-quality affordable housing, while at the same time encouraging preservation.

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[1] See, e.g., Roberta Brandes Gratz, The Jane Jacobs Century, CityLab (May 4, 2016), http://www.citylab.com/design/2016/05/happy-100th-birthday-jane-jacobs/481035 (reflecting on Jane Jacobs’s lasting impacts on urban culture and planning).

[2] Jane Jacobs, Downtown is for People, Fortune (Sept. 18, 2011), http://fortune.com/2011/09/18/downtown-is-for-people-fortune-classic-1958/.

[3] See Libby Nelson, Jane Jacobs Believed Cities Should Be Fun—and Changed Urban Planning Forever, Vox (May 4, 2016 4:30 PM), http://www.vox.com/2016/5/4/11583342/jane-jacobs-100th-birthday (“Jacobs argued [that urban renewal] ignored everything that made cities great: the mixture of shops, offices, and housing that brought people together to live their lives. And her vision triumphed.”).

[4] See Peter Moskowitz, Bulldoze Jane Jacobs, Slate (May 4, 2016), http://www.slate.com/articles/business/metropolis/2016/05/happy_100th_birthday_jane_jacobs_it_s_time_to_stop_deifying_you.html (arguing that Jacobs’s vision of urbanism had shortcomings that today are being realized, as once-diverse neighborhoods have become “all-white, aesthetically suburban playground[s] for the rich”).

[5] See, e.g., Conor Dougherty, In Cramped and Costly Bay Area, Cries to Build, Baby, Build, N.Y. Times (Apr. 16, 2016), https://nyti.ms/2kmANOG (reporting on a pro-development renters group in San Francisco, the SF Bay Area Renters’ Federation, or SFBARF, which argues that the city needs as much new development as possible, no matter the consequences). “You have to support building, even when it’s a type of building you hate,” said the head of SFBARF. Id.; see also Gabriel Metcalf, What’s the Matter with San Francisco?, CityLab (July 23, 2015), http://www.citylab.com/housing/2015/07/whats-the-matter-with-san-francisco/399506/?utm_source=SFFB (explaining that progressive policies developed to respond to blight and urban disinvestment during the twentieth century are not effective in dealing with modern-day problems of rapid population growth and high housing costs).

[6] Kriston Capps, Whose Side in the Housing Wars Would Jane Jacobs Take Up Today?, CityLab (May 4, 2016), http://www.citylab.com/work/2016/05/would-jane-jacobs-be-a-nimby-or-yimby-bob-dylan/481269.

[7] Id.

[8] See Dougherty, supra note 6 (discussing the tension between Bay Area progressives that pits preservation of the City’s historic beatnik charm against the accommodation of affordable housing through increased construction); Edward L. Glaeser, Preservation Follies: Excessive Landmarking Threatens to Make Manhattan a Refuge for the Rich, City J. (Spring 2010), http://www.city-journal.org/html/preservation-follies-13279.html (arguing that historic district restrictions on new construction reduce housing supply and drive up real estate costs, “mak[ing] those districts exclusive enclaves of the well-to-do, educated, and white”); Kriston Capps, Why Historic Preservation Districts Should Be a Thing of the Past, CityLab (Jan. 29, 2016), http://www.citylab.com/housing/2016/01/why-historic-preservation-districts-should-be-a-thing-of-the-past/431598 (arguing that historic districting is “protectionist single-family zoning” that “thwart[s]” access to desirable neighborhoods); Matthew Yglesias, Legalize Skyscrapers, Slate (Apr. 18, 2012 4:26 PM), http://www.slate.com/articles/business/moneybox/2012/04/d_c_s_height_restrictions_on_buildings_are_hurting_america_.html (arguing that affordability problem in D.C. “could be ameliorated” by removing height restrictions and building taller).

Fewer Hands, More Mercy: A Plea For a Better Federal Clemency System

Mark Osler

There is a broad consensus in the United States that we incarcerate too many people for non-violent narcotics crimes.[1] One way to address that issue, at least within the federal system, is through the use of federal clemency.[2] While President Obama used the Pardon Power in a significant way to grant commutations to 1,715 prisoners,[3] he accomplished this in spite of an archaic, bureaucratic review process that limited his results. To use the Pardon Power consistently and effectively, Obama’s successors must reform the process of consideration.

For centuries, the United States maintained a relatively simple system for the review of federal clemency petitions.[4] That changed in the 1980s, and we now have 7 to 12 levels of review[5] to arrive at the same decision: whether to grant or deny a petition for clemency. Since that shift towards complexity, grant rates have plunged,[6] and the Pardon Power has largely either been ignored or a source of political scandal.[7] While President Obama cranked this archaic machine faster, he did not replace it.[8] To fix the problem, we need to restore simplicity to this essential mechanism of mercy created by the Constitution.[9] This article sets out why reform is necessary in the face of an unproductive bureaucracy, and how that reform should be structured.

Our greatest president[10] had the simplest approach of all: Abraham Lincoln met personally with those seeking clemency on behalf of themselves or others.[11] Job Smith’s father, for example, waited in tears in Lincoln’s anteroom.[12] His son had been court-martialed and sentenced to die. When the old man told Lincoln about his son, Lincoln’s face reflected a “cloud of sorrow” according to a witness.[13] There was a complication to clemency, though. The condemned soldier served in General B.F. Butler’s Army of the James, and Butler had just sent Lincoln a note imploring him “not to interfere with the courts-martial of the army.”[14] In the end, contrary to the General’s request and in the presence of the soldier’s father, Lincoln spared Job Smith’s life.[15]

Contrast that with the process a prisoner faced when seeking clemency from President Obama in 2016. The process had changed in a century and a half. A prisoner’s father would not get to chat with the president, of course; that one degree of separation between the president and Job Smith’s father has blossomed into no less than 12 discrete, successive reviews by people with different interests, values, and filters from one another.[16]

A typical non-violent narcotics prisoner in 2016 likely would have filed his clemency petition through the Clemency Project 2014,[17] a special program established by the Obama Administration and five
outside organizations.[18] The Clemency Project 2014 was directed towards petitioners who met certain criteria.[19] Here is a lightning-round synopsis of the harrowing review process one of those cases was subjected to as it coursed through that Clemency Project and then the Administration’s review process, with each step in succession. It was:

  • (1) Screened by a Clemency Project staffer;
  • (2) Sent to a lawyer for examination and summary;
  • (3) Reviewed by a committee of three;
  • (4) Revised, then reviewed, by a committee of five;
  • (5) Returned to the lawyer, then returned to and reviewed by the Clemency Project as a petition;
  • (6) Submitted to the staff of the pardon attorney, and then reviewed by that staff;
  • (7) Reviewed by the Pardon Attorney;
  • (8) Reviewed by the staff of the Deputy Attorney General;
  • (9) Reviewed by the Deputy Attorney General;
  • (10) Reviewed by the staff of the White House Counsel;
  • (11) Reviewed by the White House Counsel;
  • (12) And then, only then, sent the President for consideration.[20]

Job Smith’s father was told on the spot that President Lincoln was sparing his son’s life. We cannot expect a president today to meet each clemency applicant personally.[21] Still, we can make the system more effective, fair, and efficient by removing at least some of these levels of bureaucracy. [22] This article will examine the problem, look to examples in the states and prior administrations, and describe two options for a new and thorough—yet efficient—clemency process.

Part II recounts how we got into this swamp, then describes the process under the Obama Administration, summarized above. It is a story that involves a dizzying array of players with very different backgrounds and tasks. Importantly, many of those charged with analyzing clemency cases are generalists; they have many and sometimes conflicting tasks other than the review of petitions for clemency.

Part III examines a few of the higher-functioning state processes for clemency and looks for commonalities. A prior federal effort also warrants discussion—President Ford’s Presidential Clemency Board, which granted pardons to thousands of draft evaders and wartime deserters.[23]

Finally, Part IV describes a model for a new federal clemency process based on the high-functioning systems already described. President Ford’s clemency board and the structure used by productive state systems share certain key elements—most importantly, the use of a board that has some degree of independence in making its determinations.

We live in an era where bureaucracy is in the decline. Microsoft, with 6 to 12 layers of bureaucracy, has lost much of its business to a flatter-structured upstart, Google.[24] Analysts like Gary Hamel have concluded that “[t]here’s no other way to put it: bureaucracy must die. We must find a way to reap the blessings of bureaucracy—precision, consistency, and predictability—while at the same time killing it. Bureaucracy, both architecturally and ideologically, is incompatible with the demands of the 21st century.”[25]

The complex bureaucracy we have in place to evaluate clemency is not just a bad system by modern standards. It is a corruption of the intent of those who wrote the United States Constitution. Alexander Hamilton argued that “[h]umanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.”[26] Our machine of mercy and justice is unduly fettered, and it is we who should be embarrassed.

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[1] Erik Eckholm, Cutting the Federal Prison Population Will Be Hard. Here’s Why, N.Y. Times (Oct. 26, 2015), https://www.nytimes.com/2015/10/28/upshot/cutting-federal-prison-population-will-be-hard-heres-why.html. Eckholm points out that there is much less of a consensus around lowering sentences for those convicted of violent crimes. Id.

[2] The vast majority of prisoners, of course, are held in state prisons. Id. Each state system has its own clemency process, though these vary wildly in efficacy. For a good examination of state clemency processes, see Margaret Colgate Love, Reinvigorating the Federal Pardon Process: What the President Can Learn from the States, 9 U. St. Thomas L.J. 730, 731 (2012) [hereinafter Love, Reinvigorating the Federal Pardon Process]. See also id. at 732, 744 (suggesting ways to restore presidential pardoning in the federal justice system).

[3] Sari Horwitz, Obama Grants Final 330 Commutations to Nonviolent Drug Offenders, Wash. Post (Jan. 19, 2017), https://www.washingtonpost.com/world/national-security/obama-grants-final-330-commutations-to-nonviolent-drug-offenders/2017/01/19/41506468-de5d-11e6-918c-99ede3c8cafa_story.html?utm_term=.bb3dd765bf57.

[4] See infra Part II.A (detailing the evolution of the America’s federal clemency program).

[5] See infra Part II.B (explaining the current United States federal clemency program).

[6] Clemency Statistics, Office of the U.S. Pardon Attorney, https://www.justice.gov/pardon/clemency-statistics (last updated Feb. 7, 2017).

[7] Jeffrey Crouch, The Presidential Pardon Power 146 (Univ. Press of Kan., 2009).

[8] President Obama’s grants of commutation (shortening of a sentence) were historically significant, but only came after more than seven years of frustration, and through largely ignoring pardons (which restore rights after a sentence has been served). Clemency Statistics, supra note 6.

[9] U.S. Const. art. II, § 2.

[10] Id. Any judgment of a president’s value is necessarily subjective. Lincoln was ranked best in a recent poll of the American Political Science Association’s “Presidents and Executive Politics” section. Brandon Rottinghaus & Justin Vaughn, New Ranking of U.S. Presidents Puts Lincoln at No. 1, Obama at 18; Kennedy Judged Most Overrated, Wash. Post (Feb. 16, 2015), https://www.washingtonpost.com/blogs/monkey-cage/wp/2015/02/16/new-ranking-of-u-s-presidents-puts-lincoln-1-obama-18-kennedy-judged-most-over-rated.

[11] Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169, 1177–78 (2010) [hereinafter Love, The Twilight of the Pardon Power].

[12] Schuyler Colfax, Leg Cases, in Meeting Mr. Lincoln: Firsthand Recollection of Abraham Lincoln by People, Great and Small, Who Met the President 81, 83 (Victoria Radford ed., 1998).

[13] Id.

[14] Id.

[15] Id.

[16] See infra Part II.B (discussing America’s federal clemency program, including the 12-step petition review process).

[17] Disclosure: The author, through the Federal Clemency Clinic at the University of St. Thomas, filed clemency petitions for several prisoners.

[18] Sari Horwitz, Justice Department Outlines Criteria for Clemency to Nonviolent Prison Inmates, Wash. Post (Apr. 23, 2014), https://www.washingtonpost.com/world/national-security/justice-department-outlines-criteria-forclemency-to-nonviolent-prison-inmates/2014/04/23/1c5e9932-cad7-11e3-95f7-7ecdde72d2ea_story.html.

[19] Those criteria were:

  • (1) Defendant would have received a substantially lower sentence today;
  • (2) The offense was non-violent;
  • (3) Defendant was a low-level offender;
  • (4) Defendant has no significant ties to large-scale criminal organizations, gangs, or cartels;
  • (5) Defendant has served at least ten years in prison;
  • (6) Defendant has no significant criminal history;
  • (7) Defendant has demonstrated good conduct in prison; and
  • (8) Defendant has no history of violence prior to or during his or her term of incarceration.

In some iterations, the second, third, and fourth criteria were conflated, and “six” criteria were listed. See Pocket Guide to the Clemency Project 2014 Process (with Checklist) 8–11, https://www.stthomas.edu/media/interprofessionalcenter/PocketGuidev3.pdf (last updated July 13, 2015) (listing criteria required by the Department of Justice).

[20] Mark Osler, Clementia, Obama, and Deborah Leff, 28 Fed. Sent’g Rep. 309, 309–10 (2016).

[21] Id. In fact, that did not even work very well for Lincoln. His staff eventually learned that they had to control access to the President so that important work could be done. Love, The Twilight of the Pardon Power, supra note 11, at 1177 (commenting on the importance of ensuring that President Lincoln met only the “most deserving” clemency cases).

[22] The current system has produced some shockingly unfair outcomes, including remarkable racial disparities. A ProPublica analysis of George W. Bush’s clemency record found that, “[a]ll of the drug offenders forgiven during the Bush administration at the pardon attorney’s recommendation — 34 of them — were white.” Dafna Linzer & Jennifer LaFleur, ProPublica Review of Pardons in Past Decade Shows Process Heavily Favored Whites, Wash. Post (Dec. 3, 2011), https://www.washingtonpost.com/investigations/propublica-review-of-pardons-in-past-decade-shows-process-heavily-favored-whites/2011/11/23/gIQAElnVQO_story.html.

[23] See infra Part III.B–C (explaining the work of President Ford’s Clemency Board).

[24] Karl Moore & Kyle Hill, The Decline but Not Fall of Hierarchy — What Young People Really Want, Forbes (June 14, 2011, 2:24 PM), http://www.forbes.com/sites/karlmoore/2011/06/14/the-decline-but-not-fall-of-hierarchy-what-young-people-really-want/#3500668c3463.

[25] Gary Hamel, Bureaucracy Must Die, Harv. Bus. Rev. (Nov. 4, 2014), https://hbr.org/2014/11/bureaucracy-must-die.

[26] The Federalist No. 74 (Alexander Hamilton).

“What Kind of a Mad Prosecutor” Brought Us This White Collar Case

Ellen S. Podgor

Throughout history, there has been a long line of cases where prosecutors have attempted to stretch statutes to cover conduct that they consider criminal.[1] Clearly, prosecutors have enormous discretion to pick and choose whom to charge, what to charge,[2] when to charge,[3] and whether to proceed against individuals or entities.[4] Likewise, prosecutors decide who will receive immunity,[5] who will get a plea benefit,[6] and whether a pending case will be dismissed.[7]

Although prosecutors do not have “unfettered” discretion,[8] there are very few restrictions on their discretionary power.[9] It is not prohibited for prosecutors to act arbitrarily,[10] and few defendants have succeeded in the dismissal of an indictment absent a showing that the alleged conduct did not match the crime charged or was a result of vindictive action.[11]

This Essay examines prosecutorial discretion that stretches statutes beyond statutory language, congressional intent, or policy. Although cases of prosecutorial stretching occur throughout the context of criminal law, this piece focuses on the stretching of statutes in the white collar context.

In the past, stretching of statutes or creative prosecutions was sometimes justified with claims that existing statutes did not cover the misconduct.[12] For example, prior to the passage in 1970 of the Racketeered Influenced Corrupt Organization Act (RICO),[13] individuals engaged in organized crime were commonly indicted and convicted for tax crimes.[14] Likewise, prior to the passage of the Computer Fraud and Abuse Act,[15] prosecutors used the National Stolen Property Act[16] and Wire Fraud[17] statutes to proceed against computer misconduct.[18] But the growth of criminal statutes makes looking beyond the explicit language of the legislation less warranted.[19]

This Essay looks at three areas of white collar crime that have seen prosecutorial statute stretching: fraud,[20] obstruction-of-justice,[21] and bribery.[22] Within each of these areas, there are many examples of both historical and recent cases requiring judicial oversight to halt prosecutorial practices.[23] This Essay concludes by noting that prosecutors who stretch statutes do a disservice to our judicial system. It is important to strictly construe white collar statutes to assure that criminal conduct is recognized and conformity with the law is promoted.[24]

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[1] See, e.g., Cleveland v. United States, 531 U.S. 12, 15, 27 (2000) (addressing prosecution under the mail fraud statute for an alleged false statement on a video poker machine license application); McDonnell v. United States, 136 S. Ct. 2355, 2361, 2370, 2372 (2016) (declining the prosecutor’s “expansive interpretation” of an “official act”); United States v. Czubinski, 106 F.3d 1069, 1071, 1076 (1st Cir. 1997) (finding that prosecution for browsing files containing tax information does not meet the elements of wire fraud).

[2] See United States v. Batchelder, 442 U.S. 114, 123–26 (1979) (discussing the broad prosecutorial power to select charges).

[3] See United States v. Mandujano, 425 U.S. 564, 595 (1976) (discussing prosecutorial authority in when to bring criminal charges).

[4] See, e.g., Ellen Podgor, The Ethics and Professionalism of Prosecutors in Discretionary Decisions, 68 Fordham L. Rev. 1511, 1531 (2000) (discussing prosecutorial discretion and the need for ethical decision-making); James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1523–37 (1981) (discussing the breadth of prosecutorial discretion).

[5] See Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. Crim. L. & Criminology 717, 741 (1996) (discussing decisions within prosecutorial discretion, including immunity grants).

[6] See Darryl K. Brown, Judicial Power to Regulate Plea Bargaining, 57 Wm. & Mary L. Rev. 1225, 1272 (2016) (discussing the breadth of prosecutorial discretion).

[7] See, e.g., Best v. City of Portland, 554 F.3d 698, 702 (7th Cir. 2009) (“[U]nder Indiana law, a prosecutor may voluntarily dismiss an indictment or information before trial for any reason and without court approval.”). Prosecutors also have discretion with respect to many related decisions, such as whether to give a defendant a 5K1.1 motion for substantial assistance, a motion that can reduce the sentence. Julie Gyurci, Note, Prosecutorial Discretion to Bring a Substantial Assistance Motion Pursuant to a Plea Agreement: Enforcing a Good Faith Standard, 78 Minn. L. Rev. 1253, 1260 (1994) (discussing the discretion afforded to prosecutors in filing a motion that serves as an exception to the legislative restrictions of mandatory-minimum sentences).

[8] Wayte v. United States, 470 U.S. 598, 608 (1985) (“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’”) (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979)).

[9] Prosecutorial discretion is limited by the use of improper factors. See United States v. LaBonte, 520 U.S. 751, 762 (1997) (“[D]iscretion is an integral feature of the criminal justice system, and is appropriate, so long as it is not based upon improper factors.”). Additionally, there are ethical restrictions that apply to prosecutorial decision-making. See Model Rules of Prof’l Conduct r. 3.8 (Am. Bar Ass’n 2016) (stating that prosecutors shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause”). See Standards for Criminal Justice Prosecution Function and Defense Function § 3-3.9 (Am. Bar Ass’n 1993), for more extensive guidance.

[10] United States v. Armstrong, 517 U.S. 456, 465 (1996) (citing Wayte, 598 U.S. at 608).

[11] The Supreme Court has held that there is no presumption of vindictiveness. United States v. Goodwin, 457 U.S. 368, 384 (1982). In United States v. Armstrong, the Supreme Court held that “[i]n order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present ‘clear evidence to the contrary.’” Armstrong, 517 U.S. at 465 (quoting United States v. Chem. Found., 272 U.S. 1, 14–15 (1926)).

[12] See, e.g., Tod H. Flaming, Comment, The National Stolen Property Act and Computer Files: A New Form of Property, a New Form of Theft, 1993 U. Chi. L. Sch. Roundtable 255, 256, 290 (1993) (discussing Dowling v. United States, 473 U.S. 207 (1985), and noting the confusion lower courts faced in addressing stolen computer files under the National Stolen Property Act).

[13] 18 U.S.C. §§ 1961–1968 (2012).

[14] Daniel C. Richman & William J. Stuntz, Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 Colum. L. Rev. 583, 630 (2005) (prosecuting individuals for lesser charges than the conduct warrants).

[15] 18 U.S.C. § 1030 (2012).

[16] 18 U.S.C. §§ 2311, 2314–2315 (2012).

[17] 18 U.S.C. § 1343 (2012).

[18] See Flaming, supra note 13, at 255 (discussing the difficulty of charging computer crimes under the National Stolen Property Act). Both of these statutes continue to be used by prosecutors when charging computer misconduct. See, e.g., United States v. Agrawal, 726 F.3d 235, 237 (2d Cir. 2013) (discussing charges brought under the Economic Espionage Act and the National Stolen Property Act); United States v. Aleynikov, 676 F.3d 71, 74–75 (2d Cir. 2012) (rejecting charges brought under the Economic Espionage Act, National Stolen Property Act, and the Computer Fraud and Abuse Act); United States v. Czubinski, 106 F.3d 1069, 1071 (1st Cir. 1997) (discussing wire fraud and computer fraud charges brought under 18 U.S.C. §§ 1343, 1346, and 18 U.S.C. § 1030(a)(4)).

[19] See Brian W. Walsh & Tiffany M. Joslyn, Heritage Found. & Nat’l Ass’n of Criminal Def. Lawyers, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law 6 (2010), http://s3.amazonaws.com/thf_media/2010/pdf/WithoutIntent_lo-res.pdf (discussing an estimated 4,450 criminal statutes by the end of 2007); Jim E. Levine, From the President: Faces of Overcriminalization, Champion, Nov. 2010, at 1, 5 (noting that there are an estimated 4,450 federal crimes and “quite possibly as many as 300,000 federal regulations that can be enforced criminally”); John S. Baker, Jr., Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes, 54 Am. U. L. Rev. 545, 547 (2005) (discussing how to limit the expansion of federal criminal law); William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 512 (2001) (“Criminal law is both broad and deep: a great deal of conduct is criminalized, and of that conduct, a large proportion is criminalized many times over.”).

[20] Although the focus here is on the mail and wire fraud statutes, 18 U.S.C. §§ 1341–1342, it is recognized that many of the fraud statutes that exist in the federal criminal code are modeled after these two statutes. See, e.g., 18 U.S.C. § 1344 (bank fraud statute).

[21] Although there are many obstruction-of-justice statutes in the United States Code, a more recent statute is selected here, 18 U.S.C. § 1519 (2012), to demonstrate prosecutorial statutory stretching.

[22] There are many bribery statutes in the United States Code. The focus here is on 18 U.S.C. § 201 (2012).

[23] Prosecutorial statutory stretching is not limited to these white collar areas, nor are all cases of prosecutorial stretching rejected by the courts. See, e.g., United States v. McNab, 331 F.3d 1228, 1247 (11th Cir. 2003) (affirming a conviction under the Lacey Act for an alleged violation of Honduran law); id. (Fay, J., dissenting) (pointing out that the Honduran government found the alleged violation to be “null and void”).

[24] This Essay is not exclusively focused on the Rule of Lenity, which “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.” United States v. Santos, 553 U.S. 507, 514 (2008). Rather, the focus is on the prosecutor who stretches a statute to fit alleged misconduct that is not encompassed within the law, intent, or the policy rationale for it being part of the criminal code.

Luck of the Draw for Asylum Seekers in Europe: Why the Common European Asylum System is a Breach of Justice and why a Third Phase of Amendments is Required

Sabrina Camboulives

In 2015, approximately 1.3 million refugees crossed into Europe in hopes of seeking asylum.[1] They arrived by sea and also crossed devastated lands.[2] The majority of the refugees in 2015 hailed from Syria, Afghanistan, and Iraq—war-torn countries whose violence has spurred an exodus to the proverbial Promised Land.[3] But is Europe indeed a continent that will equitably cater to each of these refugees? It has certainly tried. But it has certainly failed, as well.

Vermont Food Access and the “Right to Food”: Using the Human Right to Food to Address Hunger in Vermont

K. Heather Devine

The greatest health risk in the world today is hunger.[1] One out of nine people in the world do not get enough to eat—meaning they do not get enough calories, nutrients, or both.[2] Hunger and malnutrition threaten global health at a greater rate than AIDS, malaria, and tuberculosis combined.[3]

Hunger is not restricted to developing nations. Fourteen percent of United States households are food insecure—they cannot consistently access enough food for their households.[4] Closer to home, nearly 80,000 Vermonters, more than 20,000 of whom are children, are food insecure.[5] More than a third of Vermonters report they cannot afford to buy nutritious food, or they cannot buy enough food.[6]

Building an Alternative Jurisprudence for the Earth: The International Rights of Nature Tribunal

Michelle Maloney

In January 2014, members of the civil society network, Global Alliance for the Rights of Nature, held the world’s first International Tribunal for the Rights of Nature and Mother Earth (International Tribunal) in Quito, Ecuador. Since that time, the International Tribunal has met in Lima, Peru and Paris, France in parallel with the Conference of Parties for UN climate change negotiations, and Regional Chambers of the International Tribunal have been held in the United States and Australia.[1] Given that the International Tribunal has emerged from civil society rather than state-centered international law, and given that countries like Australia and the United States do not recognize, in State or Federal law, the intrinsic rights of plants, animals, or ecosystems to exist, what possible benefits do Rights of Nature Tribunals offer the natural world, and what impact can they have on the current legal system?

In this paper, I outline the creation and ongoing hearings of the International Tribunal and its Regional Chambers and provide an overview of Earth jurisprudence, the emerging theory of Earth-centered law and governance from which the Tribunals have emerged. I then contextualize the Rights of Nature Tribunals within the phenomenon of peoples’ tribunals during the twentieth and twenty-first centuries. I suggest that like many “peoples’ tribunals” before them, Rights of Nature Tribunals provide a powerful voice for civil society concerns and create an alternative narrative to that offered by western legal systems regarding environmental destruction. They also have the potential to play a role in transforming existing law and offer a welcome, cathartic contribution to the burgeoning field of Earth jurisprudence.

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[1] International Rights of Nature Tribunal, Global Alliance for Rts. Nature, http://therightsofnature.org/rights-of-nature-tribunal (last visited Nov. 23, 2016).

In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort

Rodrigo M. Caruço

American military criminal law does not often receive much attention outside the military and its law journals. But for the first time in over three decades, Congress will debate sweeping reforms to the United States military’s legal system proposed by the Department of Defense (DoD) that, if enacted, would further civilianize the military’s criminal code.[1] Just a few years ago, the acclaimed documentary The Invisible War brought the issue of sexual assault in the U.S. military to the forefront of national attention.[2] This film prompted sustained attacks by certain members of Congress regarding how the military prosecutes sexual assault cases, as well as the creation of numerous panels to study different aspects of the military’s approach to sexual assault investigation and prosecution.[3] On its own initiative, the DoD took a broader view and initiated a comprehensive review of the entire military legal system.[4] The result of this review is the DoD-proposed Military Justice Act of 2016, a wide-ranging proposal that substantially civilianizes a legal system already radically civilianized compared to its original enactment in 1775.[5] However, one institution critical to the military’s legal system will escape all scrutiny by both Congress and the DoD—its highest court, the United States Court of Appeals for the Armed Forces (CAAF). This article closes that gap.

Though an Article I court, CAAF is an independent judicial body.[6] Its budget flows through the DoD, but Congress has made it clear that CAAF is located within the DoD “for administrative purposes only . . . .”[7] Like all judicial bodies, it should benefit from ongoing scrutiny. Its early judges agreed and invited such scrutiny.[8] Though the military services law review journals and numerous civilian journals publish works analyzing specific aspects of military law, few, if any, include structural analyses of the military’s appellate institutions generally, and CAAF specifically.[9] This type of study has not occurred since the 1970s.[10] Thus, CAAF, and consequently military law, has evolved over the last 50 or so years without much scrutiny of its role within the military justice system and whether its conduct is consistent with its role. No comprehensive understanding of the military justice system is complete without a better understanding of its highest court.

This article attempts to further the understanding of CAAF’s role in the military justice system by examining CAAF’s effectiveness as the court of last resort within this system. This is accomplished by answering a series of questions. First, what is a court of last resort? Second, is CAAF viewed as a court of last resort in the military judicial hierarchy, or is it viewed as the first real intermediate appellate court, with the service courts acting as mere reviewing agencies? Third, if CAAF is viewed as a court of last resort, does it act like one?

This article concludes that CAAF is a court of last resort that, far too often, acts as an intermediate error-correction court. This conclusion raises both concerns and opportunities for a legal system facing ongoing scrutiny over its legitimacy. Each of the questions presented above are answered in order. Part I introduces the role of a court of last resort in a judicial system. Courts of last resort in a two-tiered system primarily focus on declaring what the law is, not error correction. This role is concerned with the development of the law. Error correction is the primary task of intermediate courts.[11] Part II turns the focus to the perceptions of CAAF, perceptions by both the Supreme Court of the United States (Court) and CAAF itself. Even during periods in which the Court expressed grave concern over the legitimacy and competency of the military justice system, it has always viewed CAAF as the court of last resort within that system.[12] Likewise, CAAF has always asserted itself as the court of last resort in the military justice system.[13] Though CAAF expressed this view less in recent years, it has never retreated from its earlier declarations that it was the military’s supreme court.[14]

Part III begins the inquiry into whether CAAF acts like a court of last resort describing the methodology used to obtain, review, and classify the relevant data. The sample size consisted of each published decision from four select terms: 1951–52, 1968–69, 1994–95, and 2014–15. The first three selected terms followed the enactment of legislation that specifically intended to clarify CAAF’s status as an independent and important federal court. Presumptively, these terms transpired when CAAF was most aware of its enhanced prestige. The 2014–15 term represents CAAF’s most recent full term, thus presenting the opportunity to examine its recent conduct. Based on the criteria established in Part I, each decision in these terms was given one of ten codes to classify it as either an error correction decision or a declaration of law. Nine of the codes mark the nine bases for granting review common amongst courts of last resort. The tenth code marks the decision as one of error correction. In addition to the first three terms, the Court’s 2014–15 term was reviewed and coded for validation. Proper coding should result in a high total number, indicating more declaration decisions by the Court.

Part IV analyzes the results of this examination. It concludes that each term contained an extraordinary number of error correction decisions, at times making up nearly 90% of all decisions in a given term. Furthermore, when CAAF does issue a law declaration decision, thus acting as a court of last resort, it often does not frame the issues or address them in a manner one would expect from such a court. The discussion in Part IV offers some initial potential explanations, which ultimately narrow down the question to whether CAAF understands its role, and if it is properly served by its lower courts and appellate counsel. Part V offers a procedural and substantive framework for approaching petitions for review and subsequent decisions based on the available data. This includes suggesting CAAF make clear when it is conducting error correction and when it is conducting law declaration—and why the distinction is important. Finally, this article concludes with a call for examination of the historically high level of error correction decisions issued by CAAF.

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[1] See, e.g., Military Justice Improvement Act of 2013, S. 967, 113 Cong. (2013) (providing that prosecution determinations in sexual assault cases cannot be made by commanding officers).

[2] The Invisible War (Chain Camera Pictures 2012).   

[3] Senator Kristin Gillibrand, D-NY, first introduced the Military Justice Improvement Act of 2013, which sought to remove the authority to decide whether to prosecute sexual assault cases from military commanders and place that authority in senior attorneys outside the chain of command. S. 967. Sen. Gillibrand’s bill did not make it out of committee, but the substantial interest she generated had an impact. The subsequent National Defense Authorization Act (NDAA) created two panels focused on the prosecution of sexual assault cases. National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, § 576, 126 Stat. 1632, 1758–62 (2013). The charter of the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel) directed its membership to review judicial proceedings in such cases for the purpose of gathering statistics, determining trends, and making recommendations on improving military judicial proceedings. The Judicial Proceedings Since Fiscal Year 2012 Amendments Panel, Charter 1–3 (2012). In addition, the charter of the Response Systems to Adult Sexual Assault Crimes Panel (Response Systems Panel) directed its members to investigate “the systems used to investigate, prosecute, and adjudicate . . . .” sexual assault and related offenses. Response Sys. to Adult Sexual Assault Crimes Panel, Charter 1 (2013). Part of this directive included investigating whether military commanders should retain their authority in the military legal system, known as the military justice system. Id. at 1. The panel concluded they should. Carl Levin, et al., Report of the Response Systems to Adult Sexual Assault Crime Panel 6–7, 22–23, 36–37, 161–71, 173–74 (2014). Partly in response, Sen. Gillibrand re-introduced the Military Justice Improvement Act. Military Justice Improvement Act of 2014, S. 2992, 113th Cong. (2014). It fell a few votes short in a cloture vote, 55-45. On the Cloture Motion S. 1752, GovTrack, https://www.govtrack.us/congress/votes/113-2014/s59 (last visited Nov. 22, 2016).

[4] During the same period that the NDAA directed the establishment of the Judicial Proceedings Panel and the Response Systems Panel, the DoD established the Military Justice Review Group (MJRG) to perform a comprehensive review of the Uniform Code of Military Justice (UCMJ), the Manual for Courts-Martial (MCM), and the applicable service regulations. Memorandum from the Secretary of Defense on a Comprehensive Review of the Uniform Code of Military Justice to Secretaries of the Military Departments, et al. (Oct. 18, 2013), http://www.dod.gov/dodgc/images/mjrg_secdef_memo.pdf. The last such review occurred in 1983, with many piecemeal amendments since then. Id. The MJRG conducted hearings and received information for two years; its proposals then underwent approximately a month of internal DoD review. See Military Justice Review Group, Dep’t of Defense, http://www.dod.gov/dodgc/mjrg.html (last visited Nov. 22, 2016) (providing documents related to the DoD’s review of the military justice system). Subsequently, the DoD proposed the Military Justice Act of 2016 on December 28, 2015, based on the MJRG’s initial report. Press Release, U.S. Dep’t of Def., Department of Defense Forwards to Congress Proposed Changes to the Uniform Code of Military Justice (Dec. 28, 2015), http://www.defense.gov/News/News-Releases/News-Release-View/Article/638095/department-of-defense-forwards-to-congress-proposed-changes-to-the-uniform-code.

[5] Bryan Koenig, DOD Proposes ‘First Comprehensive’ UCMJ Update in 30 Years, Law360 (Jan. 4, 2016), http://www.law360.com/articles/742081/dod-proposes-first-comprehensive-ucmj-update-in-30-years.

[6] In its report, the MJRG stated that “[i]n view of the judicial independence of the Court, the Department of Defense, as a matter of policy, typically has deferred to the Court with respect to initiating any legislative proposal that might be necessary in the interests of judicial administration.” Military Justice Review Group, Report of the Military Justice Review Group, Part: 1: UCMJ Recommendations 1020 (Dec. 22, 2015), http://www.dod.mil/dodgc/images/report_part1.pdf.

[7] 10 U.S.C. § 941 (2012).

[8] Robert E. Quinn, The Court’s Responsibility, 6 Vand. L. Rev. 161, 162 (1953). Chief Judge Quinn eagerly welcomed scrutiny: “It is my hope that the bar, individually and through its legal journals, will follow closely the work of this Court. They can perform a most valuable function in weighing individual cases against the dichotomatic concept of military justice and tell the public, the services and us, the judges, whether we are performing properly our task of enunciating principles worthy of existence in this relatively new field of law.” Id.

[9] See, e.g., Eugene R. Fidell, Is There a Crisis in Military Appellate Justice?, 12 Roger Williams U. L. Rev. 820, 820 (2007) (“The highest court of the jurisdiction — The United States Court of Appeals for the Armed Forces — is turning out careful, scholarly opinions that are easily on par with the work of the geographical circuits.”); Jonathan Lurie, Presidential Preferences and Aspiring Appointees: Selections to the U.S. Court of Military Appeals 1951-1968, 29 Wake Forest L. Rev. 521 (1994) (exploring the politicized nature of presidential appointments to the U.S. Court of Military Appeals); Scott L. Silliman, The Supreme Court and Its Impact on the Court of Military Appeals, 18 A.F. L. Rev. 81, 82 (1976) (considering the Court of Military Appeals’ status within the military justice system).

[10] See, e.g., Daniel H. Benson, The United States Court of Military Appeals, 3 Tex. Tech L. Rev. 1, 2 (1971) (describing the structure of CAAF); John S. Cooke, The United States Court of Military Appeals, 1975-1977: Judicializing the Military Justice System, 76 Mil. L. Rev. 43, 44 (1977) (discussing the effects of transforming the military justice system during the late 1970s); John T. Willis, The United States Court of Military Appeals: Its Origin, Operation and Future, 55 Mil. L. Rev. 39 (1972) (providing a history of the Court of Military Appeals and its role); John T. Willis, The Constitution, The United States Court of Military Appeals and the Future, 57 Mil. L. Rev. 27, 27 (1972) (examining the decisions and structure of the Court of Military Appeals), John T. Willis, The United States Court of Military Appeals – “Born Again”, 52 Ind. L.J. 151, 153 (1976) (discussing precedent-breaking decisions, supervisory review and civilianization by the Court of Military Appeals).

[11] To be fair, there is some discussion that this distinction is not so clear; courts of last resort and intermediate courts routinely engage in a two-way communication in the law development function. See, e.g., Doni Gewirtzman, Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System, 61 Am. U. L. Rev. 457, 462, 464 (2012) (arguing the circuit courts’ role is to maintain stability and help evolve the judicial system); Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 7–8 (1994) (comparing and contrasting two models of behavior in inferior courts, namely (1) deference to existing superior court precedents and (2) predictions of future superior court rulings). However, this article structures the roles of each level in accordance with the American Bar Association’s Standards Relating to Court Organization. See Gerald B. Cope, Jr., Discretionary Review of the Decisions of Intermediate Appellate Courts: A Comparison of Florida’s System with Those of the Other States and the Federal System, 45 Fla. L. Rev. 21, 27 (1993) (citing Standards Relating to Court Org. § 1.13 commentary at 39–40 (1990)).

[12] Silliman, supra note 9, at 82.

[13] Id. at 89–91.

[14] Id. at 91.

Balancing the Fishes’ Scales: Tribal, State, and Federal Interests in Fishing Rights and Water Quality in Maine

Patrick Marass

The state of Maine has a complicated and often adversarial legal relationship with the federally recognized Native American (Indian) Tribes in the state.[1] Perhaps the most contentious legal relationship presently pertains to Maine’s authority to regulate water resources on Indian territories and lands (Indian lands).[2] At their core, legal conflicts often involve disputes over power, money, respect, or any combination of these elements.[3] What makes conflicts between states and Native American tribes so complex, and in this particular case volatile, is that the legal issues often involve clashes of all three of these elements.[4] The legal framework for the current water resource dispute traces back to a series of state and federal laws setting aside reservation and trust land for the Tribes in the 1980s and 1990s, collectively known as the Settlement Acts.[5] The Tribes’ lack of bargaining power during these settlements arguably resulted in a jurisdictionally oppressive framework for the protection of tribal natural resources.[6] The most recent legal conflict erupted in February 2015, and juxtaposes Maine’s right to regulate water quality standards (WQS) against the Tribes’ right to fish for sustenance on their lands.[7] The emotional responses ignited by this conflict illuminate why a comprehensive approach to settling the disputes between Maine its Tribes is needed.

Bringing a Lamb to Slaughter: How Family Law Attorneys Unknowingly Lead Clients to Financial Disaster in the Negotiation of a Divorce Stipulation

Jennifer L. Bjurling

Fitzgerald v. Fitzgerald. May this case be branded on the mind of every family law attorney. The husband, Thomas, was the plaintiff, and in conformity with the typical situation, the debtor in bankruptcy. The wife, Sandra, was the defendant in the divorce complaint and creditor-spouse in bankruptcy. The parties negotiated a property settlement. The court incorporated the stipulation into a divorce decree. The stipulation required the husband to make an equalizing payment to the wife. He did not. Instead, only one month after the divorce decree, the husband filed for bankruptcy. Though she entered her appearance as a creditor in bankruptcy court, the wife chose to seek a remedy in Vermont state court. She did not object to the discharge of the husband’s debt to her in bankruptcy court. Rather, she filed a Rule 60(b) motion for fraud and misrepresentation with the family court. Prior to the Rule 60(b) hearing, the husband successfully attained a discharge of the equalizing payment to wife in the bankruptcy case. Sandra’s slaughter was complete.

The trial court dismissed the wife’s 60(b) motion as barred by the husband’s discharge in bankruptcy. On appeal, the Vermont Supreme Court held that Title 11 U.S.C. § 523(c) provides that a creditor must pursue an exception from discharge for a debt based on fraud or deceit in the bankruptcy forum. Given that the wife failed to do so, the discharge of the equalizing payment granted by the bankruptcy court was “an injunction against the commencement or continuation of an action, the employment of process, or any act, to collect, recover or offset any such debt as a personal liability of the debtor, or from property of the debtor, whether or not discharge of such debt is waived . . . .” The court stated that an attempt to distinguish the reopening of the underlying judgment, pursuant to Rule 60(b), from enforcement of the discharged debt was “illusory.” The Vermont Supreme Court further held that res judicata barred the wife from re-litigating the claim; “[f]inal orders of a bankruptcy court are res judicata as to all matters that were or could have been litigated before that court.”

Though Fitzgerald was litigated in 1984, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) continues to enable a similar outcome in Chapter 13 filings. This Article aims to provide family law attorneys with a basic understanding of bankruptcy law so they might successfully negotiate and craft divorce stipulations which are not vulnerable to discharge in bankruptcy. This Article further strives to enumerate specific strategies to achieve that end.

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The “Brave Little State of Vermont” Can Overcome Citizens United All By Itself

James Marc Leas 

Vermont can take action now to restrain the corrupting effects of money in elections without running afoul of Citizens United. With a result joined by all nine Justices, in Nevada Commission on Ethics v. Carrigan, the Supreme Court approved legislative conflict of interest recusal as a method to prevent corruption.

Recusal takes a cut at the corruption problem in a manner that is opposite to the way the old limits on election spending attempted. Vermont’s own reasonable contribution limits were declared unconstitutional by the United States Supreme Court in Randall v. Sorrell based on the notion that money is protected speech. The United States Supreme Court initiated this line of decisions with Buckley v. Valeo, continuing through Citizens United and more recent cases that take its logic even further. Recusal rules straightforwardly address the heart of corruption in democracy while entirely avoiding any entanglement in the convoluted and mostly improvised First Amendment reasoning of those decisions.

Outrage over Citizens United was initially directed toward advocacy of a constitutional amendment to permit restoration of election spending restrictions. However, the Supreme Court’s decision in Nevada Commission on Ethics means that updating our recusal rules provides a far easier and faster way for Vermont to begin to stamp out the corrupting influence of money on elections.

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